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UPDATE: A Guide to the Tunisian Legal System
Update by Khalil Mechantaf
Dahmène Touchent received his Diplôme d’études supérieures from the National Financial Institute, Algiers, Master of Law degree from Paris XIII University, and another degree in export law from Paris V University. He teaches law and economics courses to first-years and upper-class students at Institut européen des entreprises and commercial and social law at University of Paris XIII. He has written on the law of Northern Africa (Algeria, Morocco and Tunisia), as well doing studies on French labour and consumer law.
Khalil Mechantaf is an Attorney at Law in Beirut, Lebanon. He is currently a Legal Associate in private practice with a main focus on international law and agreements, and a member of the Editorial board of the Journal of Arab Arbitration. He has previously worked at the International Criminal Court and has published several studies on the judicial system in Lebanon.
Published April 2010
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Table of contents
The Executive Power: The Government
The Legislative Power: Parliament
The Economic and Social Council
Other (Semi) Governmental Institutions
Legislation (Laws, Jurisprudence and Treaties)
Literature (Textbooks on Civil Law, Administrative Constitutional Law, Criminal Law)
Tunisia, a republic of northern Africa, is bounded on the north and east by the Mediterranean Sea, on the south by Libya, and on the west by Algeria. The population is largely Berber and Arab, and Islam is the dominant religion. Arabic is the official language, although French is widely spoken.
Home of the ancient city of Carthage, the Romans, Arabs, Ottoman Turks and French realized its strategic significance, making Tunisia a hub for control over the region.
In March 1956, France granted full independence to Tunisia and a republic was declared with Bourguiba as president. President Bourguiba declared Tunisia a republic in 1957 and in June 1959, Tunisia adopted a Constitution modeled on the French system. In 1987, Bourguiba was deposed by his prime minister, Zayn al-Abidin bin Ali (Ben Ali). Ben Ali assumed the office of head of State since 7 November 1987. He runs for re-election unopposed in 1989 and 1994 and wins the elections in 1999. On 24 October 2004 he was again re-elected for a 4th mandate with 95% of the vote following a constitutional referendum in 2002 allowing him to run for more than two terms.
Consultative Committees
- Constitutional Council
- Council of State
- High Islamic Council
The executive power is vested in the President of the Republic, assisted by the Government and the Prime Minister.
The President of the Tunisian Republic
The president of Tunisia is the elected head of state. He is elected for 5 years based on the majority of votes gained according to a universal, free, direct and secret suffrage within the last thirty days of the term of office. He is the guarantor of national independence, the integrity of the Tunisian territories, respect for the Constitution and the applicable laws, law enforcement, ratification and execution of treaties, as well as governing according to a decree during the expiration of the term of the legislative power. He watches over the regular functioning of the constitutional public powers and assures the continuity of the State.
The President of Tunisia represents the Executive Power assisted by a Government presided by a Prime Minister.
Designation
The president of the Republic of Tunisia appoints and dismisses the Ministers as well as the prime minister. He leads and coordinates the work of the Government and promulgates the laws. The president also represents the republic in international affairs, and he formally appoints and dismisses the civil servants, soldiers, and judges of the state. He may temporarily delegate his powers to the Prime Minister except the right to dissolve the Chamber of deputies.
Candidate for the Presidency must be a Tunisian who does not carry another nationality, who is of Muslim religion and whose father, mother, and paternal and maternal grandfather have been of Tunisian nationality without interruption. Also, the candidate must be at least forty years and at most seventy five years of age on the day of submitting his candidacy, and enjoy all his civil and political rights.
The declaration of candidacy must be recorded in a special register before the constitutional council. The council rules on the validity of the candidacy, announces the results of the ballot and settles the challenges received accordingly.
Functions
The President is the Supreme Commander of the Armed Forces. He accredits diplomatic representatives to foreign powers.
The President may submit to a referendum any bill relating to the organization of the public powers or seeking to ratify a treaty which, without being contrary to the Constitution, may affect the functioning of the institutions.
Also, the President ratifies the treaties, declares war and concludes peace with the approval of the Parliament exercises the right of pardon and directs the general policy of the Nation, defines its fundamental options, and informs the National Parliament accordingly. He communicates with the Parliament either directly or by message.
He promulgates constitutional, organic, or ordinary laws and ensures their publication in the Official Journal of the Tunisian Republic within a maximum period of fifteen days counting from the transmission by the President of the National Parliament. During this period, the President of the Republic may return the bill to the National Parliament for a second reading. If the bill is adopted by the National Parliament with a majority of two-thirds of its members, the law is promulgated and published within a second period of fifteen days.
He watches over the execution of the laws. He exercises the general regulatory power and may delegate all or part of it to the Prime Minister.
The President nominates the highest civil and military officers on the recommendation of the Government.
Term of Presidential functions
In case the Presidency of the Republic becomes vacant on account of death, resignation, or total incapacity, the constitutional council immediately convenes and confirms the vacancy of the office with the majority of its members. The council consequently notifies the President of the Chamber of Advisors and the President of the Chamber of deputies who immediately assumes the office for a minimum period of 45 days and a maximum of 60 days. In case such a vacancy occurs during the end of the term of the Chamber of deputies, the President of the Chamber of advisors shall assume the office for a similar period. The acting President of Republic shall take the constitutional oath before the Chambers of deputies and advisors.
The acting President of the Republic may not be a candidate for the Presidency of the Republic even in the case of resignation.
The interim President of the Republic discharges the functions of the President of the Republic, however, without resorting to referendum, dismissing the Government, or dissolving the National Parliament. During this period, a motion of censure against the Government cannot be presented.
During the same period, presidential elections are organized to elect a new President of the Republic for a term of five years.
The new President of the Republic may dissolve the National Parliament and organize early legislative elections.
The President nominates the Prime Minister, and on his suggestion, the other members of the Government. The President presides over the Council of Ministers.
The Prime Minister directs and co-ordinates the work of the government. He substitutes, as necessary, for the President in presiding over the Council of Ministers or any other Council.
The President dismisses the Government or one of its members on his own initiative or on the recommendation of the Prime Minister.
Bills are deliberated on in the Council of Ministers. Decrees of a regulatory character are countersigned by the Prime Minister and the interested member of the Government.
The members of the Government have the right of access to the Parliament as well as to its committees. Any deputy may address written or oral questions to the Government.
The Parliament may, by a vote on a motion of censure, oppose the continuation of the responsibilities of the government, if it finds that the government is not following the general policy and the fundamental options. The motion is not receivable unless it is motivated and signed by at least the third of the Parliament’s members. The vote may not take place until 48 hours have elapsed after the motion of censure. When a motion of censure is adopted by a majority of two-thirds of the deputies, the President accepts the resignation of the government presented by the Prime Minister.
The Government (the Ministers) puts into effect the general policy of the nation, in conformity with the orientations and options defined by the President of the Republic. The Government is responsible to the President for its conduct.
Ministries
The people exercise the legislative power through the Chambers of Deputies and Advisors, or by virtue of general elections. Any citizen holding a Tunisian nationality for at least more than five years; is 20 years of age and more and fulfills the conditions required by the electoral law is allowed to vote for the members of both Chambers.
Election
The Tunisian parliament is the central representative organ of the people, and consists of the Chamber of Deputies, and the Chamber of Advisors. The members of the Chamber of Deputies are elected by a universal, free, direct, and secret ballot, according to the modalities and conditions determined by the Electoral Law.
The Chamber of Advisors is composed of members whose number shall not exceed that of two-thirds of the members of the Chamber of Deputies. The Electoral Law determines the procedure relating to the number of members in the said Chamber every six years, in light of the number of members of the Chamber of Deputies in office.
The members of the Chamber of Advisors are elected as follows: One or two members from each governorate, according to population’s number, are elected at the regional level from among the members of elected local authorities. One-third of the members shall be elected at the national level from among employers, farmers and workers whose candidacies shall be proposed by the respective professional syndicates from a list comprising at least twice the number of seats allocated for each category. Seats are distributed equally among the concerned sectors.
The members of the Chamber of Advisors are elected by free and secret ballot by the elected members of local authorities.
The Electoral Code defines the methods and terms concerning the election of the members of the Chamber of Advisors.
The remaining members of the Chamber of Advisors are appointed by the President of the Republic from prominent and qualified figures at the national level.
The members of the Chamber of Advisors shall not be engaged for any local or professional interests. Membership of both Chambers is not allowed.
The term of office for the members of the Chamber of Advisors is six years. Half of its composition is renewed every three years.
The Chamber of Deputies is elected for a period of five years in the course of the last thirty days of its mandate. The candidacy to the Chamber of Deputies is a right for any voter of a Tunisian mother or father, and is twenty-three years of age or more when submitting his candidacy. While the membership in the Chamber of Advisors is allowed for any voter of a Tunisian mother or father and is forty years of age when submitting his candidacy. In addition, the candidate to the Chamber of Advisors should have in certain circumstances a professional qualification that allows him to present his candidacy on behalf of employers, farmers and workers.
The electoral code, however, states that persons convicted of a crime (convicted entailing an unsuspended sentence of imprisonment in excess of three months), who have unresolved bankruptcy, are insane, or are active members of the armed and security forces cannot run for office.
In case of impossibility of proceeding with the elections during the designated time because of war or imminent peril, the mandate of the Chamber of Deputies or the Chamber of Advisors is extended by virtue of a ratified law by rendered by the Chamber of Deputies until such election could be organized. Such extension will be applied on the rest of the members of the Chamber of Advisors.
Functions
Both Chambers of Deputies and Advisors convene each year in ordinary session which begins during the month of October and ends during the month of July. However, the first session of the Chamber of Deputies begins during the first fifteen days following its election.
During the vacation, the Chamber of Deputies may meet in extraordinary sessions on the request of the President or the majority of deputies.
In addition, both Chambers of Deputies and Advisors convene in a special session based on the request of the President of the Republic, or on the request of the majority of the members of the Chamber of Deputies. Such sessions tend to examine a particular issue.
No member of the Chamber of Deputies or the Chamber of Advisors can be arrested or prosecuted because of an opinion expressed during his mandate, or because of any task he undertakes and is necessary for enforcing is parliamentary mission inside each of the Chambers. Such member cannot be arrested or prosecuted for the duration of his mandate for a crime or misdemeanor as long as the Chamber of Deputies or the Chamber of Advisors has not lifted the immunity which covers him. However, in the event of flagrant offence, arrest procedure is permitted, in such a case, the Chamber of Deputies or the Chamber of Advisors has to be informed without delay.
Legislative Competencies
The Chamber of Deputies and the Chamber of Advisors assume the legislative authority according to the Constitution. Both the President of the Republic and the members of the Chamber of Deputies can submit draft Laws. However, priority is given to bills presented by the President of the Republic. Those Laws that inflict additional taxes or expenditures or cause a decrease in the resources are rejected.
The parliament may authorize the President to issue decree-laws within a fixed time limit and for a specific purpose which must be submitted for ratification to the parliament upon expiration of that time limit.
Chambers of Deputies and Advisors ratify organic laws by the absolute majority of the members. Both Chambers also ratify ordinary laws by the majority of the members present in the session, considering that such majority reaches at least one third 1/3 of the concerned Chamber.
Organic Laws may not be submitted for deliberation by the Parliament until fifteen days have passed from its deposition.
The electoral Law is considered as an organic Law. Both Chambers of Deputies and Advisors ratify the budget according to the conditions set forth in the organic law of the budget. The budget must be voted on by December 31. In case the Chamber of Deputies ratified the organic law of the budget by that date, while the Chamber of Advisors failed to do so, such Law will be referred to the President of the Republic for ratification.
If by that date of December 31, the National Parliament has not taken any decision in this regard, the provisions of the Laws of the budget may be implemented by a decree, in three month renewable installments.
Once the bill has been passed by the parliament, it must be countersigned by the President. For the law to take effect, the president must assent and promulgate the law.
Dissolution of Parliament
If the Parliament has adopted a second motion of censure with a two-thirds majority during the same legislative period, the President of the Republic may either accept the resignation of the government or dissolve the National Parliament.
The decree dissolving the National Parliament must include the calling of new elections within a maximum period of thirty days.
Shari’a courts were abolished in 1956, and since then Tunisia has had a single unified judiciary structure.
Magistrates are nominated by decree of the President of the Republic upon the recommendation of the Superior Judicial Council. The method of their nomination is determined by the Law.
The Superior Judicial Council serves as the administrative authority of the judiciary. The Council is presided over by the President of the Republic and is composed of senior jurors. The Ministry of Justice administers the judiciary.
Judges are independent. They abide only by the Law. The essential guarantees for the Judges, including their nomination, appraisal and punishment is undertaken by the Superior Judicial Council.
The current judicial system has civil, criminal, and administrative departments.
At the base of the Tunisian judicial structure are the 51 District Courts, in which a sole judge hears each case. The jurisdiction of the District Courts extends to civil cases of lesser value, as well as cases related to issues of labor and nationality, civil affairs, personal estate actions, actions in recovery and injunctions to pay.
The District Courts rules on first or final instance:
It rules in chambers (référé) in these cases:
The Courts of First Instance serve as the appellate courts for the District Courts. There is a Court of First Instance located in each region of Tunisia. Each Court is composed of a three-judge panel.
The Courts of First Instance hear all commercial and civil cases, irrespective of the monetary value of the claim.
The court of first degree rules on:
The Appeals Courts serve as the appellate courts for decisions made in the Courts of First Instance. Cases that were originally heard in the District Courts and appealed to the Courts of First Instance may be further appealed to the Supreme Court.
The Court of Appeal is only qualified to rule on:
The three Appeals Courts are located in Tunis, Sousse, and Sfax.
The Supreme Court, or Court of Cassation, is located in Tunis and serves as the final court of appeals. The Court has one criminal and three civil divisions.
The organization of the criminal court system is similar to that of the civil court system.
The High Court meets in a case of high treason committed by a member of the Government. The mandate and procedures applied in this Court are determined by the Law.
The Constitutional Council is composed of nine members, regardless of their age. Four of the nine members, including the President, are appointed by the President of the Republic. The President of the Chamber of Deputies appoints two members of the Council. The members are appointed for a renewable period of three years. The three remaining members are ex officio members of the Council, and include the Presidents of the Court of Cassation, the Administrative Court and the Circuit of Accounts.
Members of the Council cannot have governmental or parliamentary missions, or be engaged in political affairs, which may affect their impartiality or independence.
The constitutional Council examines the draft Laws submitted to him by the President of the Republic for conformity and compatibility with the Constitution. The submission to the Council is mandatory with regard to draft Laws provided in article 47 of the constitution (laws of high national interest), as well as draft laws relating to:
In addition, the President submits mandatory to the Constitutional Council the treaties that separate the Republic from its Arab surrounding or that violate the unity of the Arab Western hemisphere. The President can also refer to the Council other issues relating to the organization and functioning of the constitutional institutions.
The Constitutional Council settles the claims of annulment of elections of the members of the Chambers of Deputies and Advisors, and supervises the validity of referendums.
The draft laws of the President of the Republic are submitted to the Constitutional Council before referring them to the Chamber of deputies or to referendum. He submits as well the draft laws ratified by the Chamber of deputies. The by-laws of the Chambers of Deputies and Advisors are submitted to the Council before putting them into force.
The President of the Republic refers to the Chambers of Deputies and Advisors the draft laws reviewed by the Council with its opinion attached.
The decisions of the Council in electoral matters are final and cannot be subject to any recourse to annulment.
The Basic Law can only be changed by the President of the Republic or by no less than one-third of the members of the Chamber of Deputies, provided the amendment does not undermine the republican form of the State.
The President of the Republic may put to a referendum proposals for revision of the Constitution.
The Chamber of Deputies studies the proposed revision following a resolution adopted by absolute majority, after identification of the purpose of the amendment and its study by an ad hoc committee.
In case of non-recourse to referendum, the draft amendment of the Constitution can be adopted by the Chamber of Deputies by a two-thirds majority upon two readings; the second reading takes place at least three months after the first.
In case of recourse to referendum, the President of the Republic submits the draft amendment of the Constitution to the people after it has been adopted by an absolute majority of the Chamber of Deputies upon a single reading.
The Council of State is composed of two committees:
- administrative court
- Circuit of accounts
The Law determines the organization and panel of the Council, in addition to its scope of work and the procedures applied.
The Economic and Social Council is a consultative assembly in economic and social matters. Its composition and relations with the National Parliament are determined by law.
The municipal and regional councils conduct the local affairs under the conditions determined by law. For administrative purposes, Tunisia is divided into 23 governorates, each headed by a governor who is appointed by the president.
The amendment of the Constitution
The President of the Republic or the 1/3 of the members of the Chamber of Deputies may request the amendment of the Constitution, unless such amendment violates the Republican system of the State. The President may submit the draft amendments to referendum. The Chamber of Deputies reviews the draft amendment following a decision by the majority of its members. In case the amendment was not submitted to referendum, the Chamber of Deputies ratifies the said draft by 2/3 of its members.
Adminstrative law
Borowiec, Andrew Modern Tunisia: a democratic apprenticeship, Westport, Conn.: Praeger, 1998
Camau, Michel Vincent Geisser, Le syndrome autoritaire : politique en Tunisie de Bourguiba à Ben Ali, Paris : Presses de Sciences po , 2003.
Durupty, Michel, “administrative Institutions and Tunisian administrative law”, Editions of the national scientific research Center, Paris
Dwight, L. Ling, Tunisia, from protectorate to republic, Bloomington: Indiana University Press, 1967.
Tunisia: A Country Study, 3rd ed., Nelson, ed., Washington, D.C., 1988
Ezzeddine, Moudoud, Modernization, the state, and regional disparity in developing countries: Boulder, Colorado Tunisia in historical perspective, 1881-1982. : Westview Press, 1989
Ferchichi, Bechir, the work of the institution of the deferment in Tunisian criminal law, “Center of studies, search and publications of Faculty of law, political and economic sciences of Tunis”, Tunis.
Berkeley, Tunisia since independence; the dynamics of one-party government, University of California Press, 1965,
Mabrouk, Mohieddine, “Treaty of Tunisian Administrative law”, Tunisian House of the Edition, Tunis
Corporate debt
Ammar, Abdelmajid, “the personal liability for the leaders of corporations in the event of collective procedure”, Chabloz Printing works, Tolochenaz
Comparative law
Ben Aissa, Mohamed Salah the principle of specialty and economic publicly-owned establishments in Tunisian and French law, “studies Center of Faculty of right and political and economic sciences of Tunis”
Criminal Law
Baccouche, N La protection de l’autorité publique dans le Code pénal tunisien Tunis, ENA 1985
Baccouche, Néji "Le problème des délits électoraux en Tunisie" Revue tunisienne de droit (1982)
Ben Achour, Rafâa "Les protections et les garanties constitutionnelles des droits et libertés en
Tunisie" Revue tunisienne de droit (1989)
Ben Achour, Yadh "Islam et Constitution" Revue tunisienne de droit (1974)
Ben-Halima, S "La régionalisation du droit pénal international et la protection des droits de l'homme dans les procédures de coopération internationale en matière pénale: Tunisie" 65 Revue
Internationale de Droit Pénal (1994) 487-491
Human Rights Watch The administration of justice in Tunisia: Torture, trumped-up charges and a tainted trial (E1201) 3/00
Jazi, Daly Les rapports entre l’Etat et le citoyen dans la Tunisie indépendante: Le problème des liberté publiques Thèse de doctorat de l'Université de Paris II, 1982
Khalfallah, L "Le mauvais traitement des enfants à travers le droit tunisien" Revue de jurisprudence et de législation (1997)
United Nations Freedom of opinion and expression - mission to Tunisia E/CN.4/2000/63/Add.4
Zine, M & Halima, SB "Les mouvements de reforme de la procédure pénale et la protection des droits de l'homme en Tunisie" Revue Internationale de Droit Pénal (1993) 1345-1355.